Sotomayor's rejection of "empathy" represents a big blow to the theory of a the Constitution as a "living document" to be re-interpreted as the whims of public opinion dictate. It may also tie the President's hands down the road when he wants to select a liberal nominee to replace the next Justice who retires.
From Senator Sessions:
WHAT HAPPENED TO PRESIDENT OBAMA’S EMPATHY STANDARD?
“Republicans have effectively set a new standard that future nominees
will be pressed to meet”
BEFORE: “By making empathy a core qualification, he is uniting his own eclectic experience as a community organizer and constitutional-law professor while demanding what he has called ‘a broader vision for what America should be.’” (Obama Makes Empathy Requirement for Court, Washington Post, 5/13/09)
AFTER: “By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with ‘empathy,’ Republicans have effectively set a new standard that future nominees will be pressed to meet.” (Future Nominations are at Stake in Hearings, New York Times, 7/16/09)
BEFORE: “President Barack Obama said last week that he’d be looking for “empathy” in his Supreme Court nominee… Obama’s comments Friday about judges needing to identify ‘with people’s hopes and struggles’ and the reaction to those remarks seemed to cast the early debate in a way that is likely to favor Democrats.” (Obama’s Search for Empathy Shapes Supreme Court Replacement Debate, Politico, 5/4/09)
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AFTER: “‘empathy,’ the quality President Barack Obama has proposed as a criterion for his judges, got a pummeling from both Republicans and Democrats -- and from the nominee herself.” (‘Empathy’ Takes a Knock in Confirmation Hearings, Wall Street Journal, 7/20/09)
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BEFORE: “How does President Obama spell ‘empathy’? S-C-O-T-U-S… The confirmation battle over Obama's replacement… will dissect the constitutional and increasingly political issue of whether a high court justice should take his or her cues from the Constitution and legislative bodies -- the conservative view -- or take those matters into account while also assessing the deeper needs of society -- the liberal view.” (Obama Pushes for ‘Empathetic’ Supreme Court Justices, FOX News, 5/01/09)
AFTER: “Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time. She repudiated the president’s assertion that ‘what is in a judge’s heart’ should influence rulings and rejected the liberal idea that the Constitution is a ‘living’ document whose meaning evolves with society.” (Future Nominations are at Stake in Hearings, New York Times, 7/16/09)
BEFORE: “Sessions and other Judiciary Republicans will take aim at her position on gun rights, the role of ‘empathy’ in her rulings as a federal judge, and whether she has allowed foreign laws to inform her decisions in the past… why the Constitution should be strictly interpreted, rather than being viewed as a ‘living, breathing’ document… the GOP Senators are hoping to lay out their broader view of the judiciary and its role.” (GOP Senators to Kick Off Campaign Against Sotomayor, Roll Call, 6/22/09)
AFTER: “[Republicans] succeeded in getting Sotomayor to distance herself from Obama's wish for justices who have ‘empathy’ and his belief that ‘what is in a judge's heart’ should influence rulings. Under GOP questioning, she rejected the belief of some liberals that the Constitution is a ‘living’ document whose meaning changes over time, and that foreign law should be used in deciding cases. Those responses established clear issues for Republicans to confront any future high-court nominee by Obama and could complicate his search for liberal candidates.” (GOP sets stage for future court battles, Associated Press, 7/17/09)
BEFORE: “[The President’s] goal of a nominee with ‘empathy’ has already sparked a battle with Republicans and others who say the Supreme Court should concern itself with judicial philosophy, not social outcomes.” (Obama wants court pick to have 'empathy', Washington Times, 5/02/09)
AFTER: “‘Empathy’ is Obama's effort to find a new label free of the baggage that might be carried by the old labels, but it just didn't work,’ said Larry Kramer, dean of Stanford Law School.” (‘Empathy’ Takes a Knock in Confirmation Hearings, Wall Street Journal, 7/20/09)
BEFORE “Opening statements showed that Sotomayor will have to answer not only for her own record but for President Obama's desire for a jurist with ‘empathy.’” (Toughest grilling still to come for Sotomayor, USA Today, 7/14/09)
AFTER: “Sonia Sotomayor has started to sound more like the sort of nominee we would have expected from a President McCain than a President Obama.... It is almost as if she and her White House handlers believe that a more forthright explication of a liberal judicial philosophy -- a philosophy like that articulated in her speeches and defended by the president -- would pose an obstacle to her confirmation... If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal... does this mean there is little political support for a progressive constitutional vision?” (The Sotomayor Hearings, Day Three, Washington Post, Jonathan Adler, Case Western Reserve law professor, 7/15/09)
BEFORE: “That quality — Obama calls it empathy — is a huge factor in picking a successor to retiring Justice David Souter.” (Obama: Empathy Key Quality In Supreme Court Pick, Associated Press, 5/23/09)
AFTER: “The White House declined to address Judge Sotomayor's comments on empathy.’” (‘Empathy’ Takes a Knock in Confirmation Hearings, Wall Street Journal, 7/20/09)
BEFORE: “Liberal groups argued that the Democratic Party's majority in the Senate, which is nearly large enough to overcome any obstacles set by Republicans, gives Obama far more latitude than most presidents in making his choice. ‘If there was ever an opportunity for Obama to make a bold statement, this is the time,’ Stanford law professor Pamela Karlan said.” (Obama calls 'empathy' key to Supreme Court pick, Los Angeles Times, 5/02/2009)
AFTER: “The hearings ‘did serious damage to the cause of progressive thought in constitutional law,’ said Geoffrey R. Stone, a University of Chicago Law School professor who was dean there when Obama joined its faculty. Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank, called them ‘a totally missed opportunity… The progressive legal project hit rock bottom [last] week.’” (Little for Liberals in Confirmation Hearings, Washington Post, 7/19/09)
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